Is ObamaCare The Largest Tax Increase In U.S. History?

Supreme Court Chief Justice John Roberts decided to save President Obama’s signature legislation by ruling that the individual mandate requiring Americans to have health coverage or pay a fine is constitutional under the federal government’s taxing power.

That ruling took most people by surprise, since the Justice Department appears to have thought the “taxing power” argument was the weakest of its three weak justifications.  Maybe Roberts has an affinity for weak arguments, because he certainly made a number of them himself in justifying the mandate as a tax.

When the chief justice and his liberal colleagues consider the mandate a tax, they seem to mean only the penalty a person must pay for not having health insurance. However, the mandate has two parts: the requirement to have coverage and the penalty — er, tax — for not getting it.  Why aren’t both considered a tax?

ABC’s George Stephanopoulos did.  When he directly challenged the president on the mandate-as-tax question, he said, “Under this mandate, the government is forcing people to spend money, fining you if you don't.  How is that not a tax?”

And if both the premium and the penalty are considered a tax, the mandate becomes the largest tax increase in U.S. history. And that doesn't include all of the other taxes imposed by the legislation.

The median U.S. family income is about $50,000.  Family health coverage can easily run $20,000 a year — and rising quickly.  In that scenario, the coverage mandate is essentially a 40 percent tax on that family, which is now required by law to ensure that every family member has qualifying coverage.

And because the cost of the coverage will be similar even though incomes vary significantly, the lower the income the higher the effective tax rate — in essence, the most regressive tax in U.S. history, too.

Now, President Obama and his enablers may deny the health insurance premium is a tax.  But the bill’s defenders — including Budget Director Peter Orszag, Health and Human Services Secretary Kathleen Sebelius, and the president himself, not to mention Democrats in Congress — also denied the mandate was a tax.

But when it became useful for the law’s supporters to consider the mandate a tax, they made the mental switcheroo easily.  That’s because consistency and truth were not the goal; getting five Supreme Court votes was the only thing that mattered.

If Roberts had told the liberals on the Court that the price for him signing on to the mandate was to consider both the premiums and the penalty a tax, would any of them have objected?  How about the Flip-Flopper in Chief?

Indeed, several defenders of the legislation pointed out that workers have long been required to pay a 2.9 percent tax on their income, known as the Medicare FICA tax.  And, they concluded, if the government can require workers to pay the FICA tax, which functions as a type of health insurance premium, and force them to have Medicare coverage when they turn 65, then the government should be able to require everyone under 65 to have coverage.

Of course, the architects of Medicare were clear that FICA is a tax, while the architects of ObamaCare were clear that the mandate isn’t a tax.  It was only after the constitutional challenges that the Justice Department had to go on a fishing expedition for justifications.

No Obama administration official or elected Democrat in Congress gave even the slightest consideration to the notion that the individual mandate was unconstitutional.  Not one.

When CNSNews asked Democrats about the provision’s constitutionally, they either dismissed the question — as with Nancy Pelosi’s “Are you serious!?” response — or they mumbled something about people being required to have auto insurance (which is a state, not federal, requirement).

All of the justifications — the Commerce Clause, the Necessary and Proper Clause, and the tax-authority argument — came after the passage of the legislation.  The Justice Department threw everything it could against the wall in the hope that something would stick.  And one thing did, to Roberts.

The irony is that if Chief Justice Roberts had just taken the administration’s primary argument — that the mandate was allowed under the Commerce and/or Necessary and Proper Clauses — it would have been a 5-4 decision striking down the mandate.

But Roberts went out of his way to salvage something the administration couldn’t.  In essence, Roberts reached down and pulled out a drowning man who had gone under for the third time.

In doing so he has set a terrible precedent.  Any politician can now argue that new mandates on the public aren’t a tax, only to decide they are a tax after getting reelected.

Now the battle moves back to the political stage — though it never really left — as every Republican runs on repeal and replace.  ObamaCare is one of the most unpopular pieces of legislation in modern history, with Rasmussen polls consistently showing somewhere between 52 and 58 percent of the public wanting the law repealed.

What Roberts didn’t have the clarity or gumption to do in the Supreme Court, the voters will have to do — in November.

Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow at  twitter.com/MerrillMatthews